BHARGAVA, J. - (1.) THESE two first appeals No. 74 of 1955 and No. 9 of 1956 are directed against the decree of the learned Civil Judge, Jaipur District, Jaipur in a suit for recovery of Rs. 10,000/- as compensation for non-delivery of goods consigned from Tapana Railway Station (old G. I. P. now Central Railways) to Sri Madhopur (Western Railways) and are being disposed of by this judgment.
(2.) PLAINTIFFS are the last endorsees of the railway receipt Ex. 1-A1 dated 5th January, 1948 for the consignment of 285 bags of cotton seeds consigned by firm Laxminarain Balkishen Das Bhootra (Defendant No. 4) from Tapana Railway Station to Sri Madhopur. The railway receipt Ex. 1-A1 was endorsed by defendant No. 4 to defendant No. 5, by defendant No. 5 to defendant No. 6, by defendant No. 6 in favour of defendant No. 7, by defendant No. 7 in favour of defendants Nos. 8 and 9 and by defendants Nos. 8 and 9 in favour of the plaintiffs. According to the plaint allegations as the goods were not delivered at Sri Madhopur to the plaintiffs they filed the present suit against the Union of India representing the Western, Central and Northern Railways and defendant No. 4, the original consignee and defendants Nos. 5 to 9 the subsequent endorsees of the railway receipt claiming Rs. 10,000/- for the price of the goods damages and other incidental charges. Defendants Nos. 4 to 9 were impleaded because they were also endorsees of the railway receipt and according to the plaintiffs were bound to deliver the goods to them. All the defendants except defendant No. 7 filed their written statements. The Union of India contested the suit on the ground that the booking of the disputed goods was prohibited at the time and the Station Master, Tapana accepted it in contravention of the prohibitory orders and as such the Railway Administration was not liable as carrier of goods for any compensation for their non-delivery. It was pressed that the Station Master, Tapana acted in collusion with defendant No. 4 and his acceptance of the goods for consignment was beyond the scope of his authority. When the Railway Administration came to know of the unauthorised act of the Station Master, they dismissed him from service. The goods were not moved from Station Tapana because of the directions of the Controller of Railway Priorities and therefore, he informed defendant No. 4 to remove the goods from the railway station and to surrender his railway receipt (Vide Ex. A 10 dated 28th February, 1948 ). It was further pleaded that the Regional Controller of Railway Priorities could restrict the movement of goods under sec. 3 of the Railway Transport of Goods Act (Act No. 12 of 1947 ). Sec. 5 of the said Act gives protection to the Railway Administration concerned against claims for damages caused or likely to be caused by such compliance of the directions of the competent authorities. Notices were again given on 28th July, 1948, Ex. A 12, 26th August, 1948 Ex. A15 and 16th October, 1948 Ex. A14 by Railway Administration to defendant No. 4 to remove the goods and to pay the storage charges but he failed to remove the goods and so the Railway Administration sold the disputed consignment along with other goods consigned by defendant No. 4 by auction on 27th Dec, 1948. Besides, objections were also raised regarding the validity of notices under secs. 77 and 140 of the Railway Act and sec. 80 of CPC. Plaintiff's right to institute the suit was also challenged. Defendant No. 4 admitted having consigned the goods from Tapana Railway Station to Sri Madhopur vide Railway Receipt No. 4525/59 on 5th January, 1948 and pleaded that he had endorsed the said railway receipt in favour of defendant No. 5 for Rs. 5230/-He denied his liability for the suit amount on the ground that there was no privity of contract between him and the plaintiffs. Similarly defendants Nos. 5 and 6 admitted the railway receipt being endorsed in their favour, but denied their liability to pay any compensation to the plaintiffs with whom they had no agreement. Defendant No. 6 also stated that he had endorsed the railway receipt in favour of defendants Nos. 8 and 9 through defendant No. 7. Defendant Nos. 8 and 9 denied their liability and pleaded that they were acting as commission agents at Khandawa for the plaintiffs who wanted to purchase the railway receipt Ex. 1-Ai from defendant No. 6 and they therefore, in their capacity as commission agents or intermediaries got the railway receipt endorsed in their favour and later on endorsed it in favour of the plaintiffs. They also admitted that defendant No. 7 was introduced for facilitating the passing of consideration by the plaintiffs in favour of defendant No. 6 because he had an account with the bank. The trial court framed the following issues: (1) Whether the plaintiff carry on partnership business in the name of Firm Ram Chandra Puranmal and as such the suit is not maintainable by them individually as the said firm has not been registered? (2) Whether the suit is bad for misjoinder of parties? (3) Whether this court has no jurisdiction to hear the present suit? (4) Whether the defendants Nos. 8 and 9 did not act individually but acted on behalf of the firm Ramavtar Dulichand and as such the said firm being registered one is necessary party to be impleaded as defendant? (5) Whether the Station Master, Tapana had no authority to issue R. R. No. 4525/ 59 regarding consignment of goods from Tapana to Sri Madhopur and thus acted beyond the scope and authority of his employment for which defendant No. 2 (G. I. P. Railway Central Railway is not liable as carrier of goods? If so, how does it affect the suit? (6) Whether the contract for carriage of goods i. e. , cotton seed from Tapana to Sri Madhopur by the servant i. e. S. M. of Rly. Administration defendant No. 2 was illegal and void ab inito ? If so, what were its consequences on the suit; (7) Whether the Station Master, Tapana colluded with the defendant No. 4 in booking the consignment and issuing R. R. for carriage of goods and practised fraud on the Rly. defendant No. 2 and as such defendant No. 2 cannot be held liable for fraudulent act? (8) Whether transport of goods from Tapana to Sri Madhopur could not be effected due to no permission from the Regional Controller of Rly. Priorities and as such the Rly. Administration defendant No. 2 was protected under sec. 5 of the Rly. (Transport of Goods Act) No. XII of 1947? (9) Whether the notice referred in para No. 6 of the plaint is legal and valid and as such the suit is entertainable? (10) Whether notice under sec. 80 C. P. C. is in accordance with law and in due form and was duly served on the Rly. Administration? (11) Whether defendants Nos. 1 and 3 are not necessary parties and the plaintiffs have no cause of action against them? (12) Whether the Dealers and Co. was a limited concern and has ceased functioning and closed its business 2 years ago and if defendant No. 2 had sold his shares and thus he has no individual liability? (13) Whether the defendants Nos. 4 to 8 are not liable to the plaintiffs in respect of the goods as they are the vendors G. R. R. Ex. 1? (14) Whether the consigned goods i. e. cotton seeds are worth Rs. 8266/4/- and the plaintiffs are entitled to get the prayed profit, interest and costs as damages on the same? (15) Whether amendment regarding booking particulars allowed on 19. 9. 55 is not in accordance with law and the suit becomes time barred on account of the same. (16) Whether the defendants Nos. 8 and 9 as partners of the firm Ramavatar Dulichand purchased R. R. Ex. 1 from defendants Nos. 6 at the instance and for the benefit of the plaintiff in the capacity of plaintiffs commission agents through instrumentality of defendants No. 7 and as such they have got no personal liability in connection with the transaction; (17) Whether defendant No. 1 on behalf of the Dealers & Co. purchased R. R. Ex. 1 from defendant No. 4 and then on 7. 3. 1948 executed an agreement in favour of defendant No. 4 to undertake the liability in respect of R. R. Ex. 1? If so, how does it affect the suit? (18) Whether defendant No. 6 sold R R. (Ex. 1) to the defendant Nos. 8 and 9 on 16. 1. 1948 with the special contract that defendant No. 6 shall be exempted from any liability arising out of the transaction vide R. R. Ex. 1?. (19) Whether the goods consigned vide R. R. Ex. 1 were sold by defendant No. 4 to defendant No. 5 and by defendant. No. 5 to defendant No. 6 and by defendant No. 6 through agents to defendant Nos. 8 and 9 and in the end by defendants Nos. 8 and 9 to the plaintiffs for Rs. 8401/10/-? (20) Relief. After recording the evidence of the parties, plaintiffs' suit for Rs. 3360/- with proportionate cost was decreed against the Central Railway (Defendant No. 2) and was dismissed against the Western & Northern Railways, defendants Nos. 1 & 3 by the learned Civil Judge. It was also decreed against defendant No. 4 for Rs. 5140 with proportionate costs. Defendants Nos. 5,6,8 and 9 were held jointly and severally liable for the payment of Rs. 5140/-in conjunction with defendant No. 4. The suit was dismissed against defendant No. 7. Appeal No. 74 of 1955 has been filed by defendant Nos. 8 and 9 who had endorsed the railway receipt in favour of the plaintiffs and appeal No. 9 of 1956 has been filed by defendant No. 4 who was the original consignor of the goods. The remaining defendants and the plaintiffs have not preferred any appeal against the said decree. The finding of the learned Civil Judge may briefly be summarised thus: - "that the Station Master, Tapana acted in contravention of the rules and procedure and in violation of the restrictive directions. Still it was up to him to accept or refuse the consignment wrongly or rightly and it was within his scope of employment because there appears to be collusion, but no criminal fraud has been established by cogent evidence which may exonerate the master's liability for the servants' negligent acts or misconduct within the scope of employment. " "the Railway Administration is not under a liability for damages as carrier of goods because the Station Master booked the consignment aga inst the restrictions contained in Exs. A4, A5, A6 and A7 and since the goods were not moved from Tapana Railway Station in compliance with the directions of the Regional Controller of Railway Priorities they were protected under sec. 5 of the Railway Transport of Goods Act from payment of any damages. " He has further found that: - "the railway was liable as bailee for the safe custody of the goods and for their safe return to the right claimant. The notices given by the railways to defendant No. 4 could not avail them because he had already sold the goods to the other persons and eventually to the plaintififs who had informed the railway before the goods were actually sold that they were the last endorsees of the railway receipt. " He therefore, held the railway liable for the price of goods fetched at the auction i. e. Rs. 3360/-which according to him represented the market price of the goods. He found under issues Nos. 13 and 16 that though defendant Nos. 8 and 9 acted as commission agents for the plaintiffs at Khandawa yet as they did not disclose a foreign principal to the plaintiffs nor mentioned the plaintiffs name to defendant No. 6 they were personally liable to pay compensation for the non-delivery of the goods even in their capacity as commission agents. Beside he held on the basis of the statement of Puranmal (P. W. 2) that defendants Nos. 8 and 9 had expressly agreed that if the goods are not delivered to them they shall be personally liable for the Ioss. | On these grounds he held these defendants liable for payment of Rs. 5143/- the balance of the price of the goods after deducting Rs. 3360/- for which the railway was held liable. Defendants Nos. 4, 5 and 6 were held liable because according to the learned Judge they were under an obligation to deliver the goods to their vendees in their own turns. Before dealing with the points raised by the appellants it would be useful to mention some important facts in their chronological order. Ags of cotton seed were booked from Tapana Railway Station to Shri Madhopur under railway receipt No. 4525/59 dated 5th January, 1948 vide Ex. 1 or A 1. The dates on which the railway receipt was endorsed in favour of defendants Nos. 5,6,7,8 and 9 or the plaintiffs is not mentioned in the railway receipt. On 17th January, 1948, defendants Nos. 8 and 9 sent Beejak Ex. 2 to the plaintiffs. On the same day a Hundi Ex. 4 was drawn by defendant Nos. 8 and 9 on defendant No. 7. On 26th Feb. , 1948, notices are said to have been given by the plaintiffs to the railways (though the notices are not in the record) for the delivery of the goods to them. This is according to the statement of the plaintiff Puranmal (P. W. 2) and is also mentioned in Ex. 8. On 28th January, 1948, the Divisional Traffic Manager vide Ex. 10 asked defendant No. 4 to remove the goods and to surrender the receipt. On 18th March, 1948 (Ex. An) defendant No. 4 gave a reply to the railway asking them to despatch the goods as they had accepted the consignment. (It is significant that defendant No. 4 in his reply did not inform the railway administration that he had already endorsed the railway receipt in favour of defendant No. 5. ). On 5th April, 1948, vide Ex. 6, plaintiffs informed the railway administration that they were the last endorsees of the railway receipt and were the owners of the goods covered by Ex. 1 A1. On 5th March, 1948. the Divisional Traffic Manager requested the Regional Controller of Priorities to allow movement of the goods as the railway receipt had been sold to other persons and they were making enquiries and preferring claims (Ex. A8. ). On 12th July, 1948, (Vide Ex. A9) the Regional Controller of Priorities refused movement of the goods as requested. On 28th July 1948, (vide Ex. A-12) the Divisional Traffic Manager. Bhusawal informed defendant No. 4 to remove the goods and to pay Rs. 7417/- as storage charges. On 29th July, 1948, defendants Nos. 8 and 9 sent their account Ex. 3 to the plaintiffs. On 26th August, 1948, notice Ex. 8 was sent by plaintiffs' advocate to the defendant Nos. 1 to 3 under sec. 80 of the Code of Civil Procedure. On 26th August, 1948, Ex. A15 letter was sent by the Chief Traffic Manager to defendant No. 4 asking him to remove the nine booked wagons of cotton seeds. On 16th October, 1948, Ex. A14 notice by Divisional Traffic Manager, Bhusawal; was sent to defendant No. 4 asking him to remove the goods within 15 days and claiming Rs. 9000/- as demurrage. On 27th December, 1948, goods were sold by railway administration by public auction for Rs. 16100/-, which also included other goods consigned by defendant No. 4. On 27 January, 1949, the Divisional Traffic Manager, Bhusawal informed defendant No. 4 about the sale of the disputed consignment. Learned counsel for the appellants in appeal No. 74 of 1955 contends that defendants Nos. 8 and 9 acted as commission agents for the plaintiffs and were not personally liable to pay any damages on account of the non-delivery of the goods by the railway administration to the plaintiffs. It is contended that the plaintiffs had themselves come to Khandawa and had purchased the railway receipt from defendant No. 6, through their agency and therefore, it is not a case where the name of principal was not disclosed. Further the name of the principal is mentioned on the railway receipt itself and for that reason also it will not be a case of an undisclosed principal as observed by the learned Civil Judge. It is next contended that by the endorsement of the railway receipt in favour of the plaintiffs and the payment of price of the goods it was intended that the property in the goods should pass by the endorsement of the railway receipt and therefore, they are not at fault if the railway administration did not deliver the goods to the plaintiffs. It is argued that there has been no breach of contract in the transaction of sale of goods. If there has been any breach it has been in connection with the contract of carriage of goods, and in that case it is the railway administration alone which was liable to pay the loss for non-delivery of the goods which the plaintiffs as the last holder of the railway receipt are entitled to claim from the former. As for the agreement of defendant Nos. 8 to 9 to pay damages it is contended that it was not pleaded by the plaintiffs nor was any issue framed on that point. Ex. 2 dated 17th January, 1948, is the account sent by defendants Nos. 8 and 9 to the plaintiffs regarding the price of 285 bags of cotton seeds, and the total amount spent by the defendants Nos. 8 and 9 for the plaintiffs which the latter had been asked to credit in the account of the defendants is Rs. 8401/10/ -. In this amount a sum of Rs. 82/- and some annas pertains to their commission charges. This document has been produced in evidence by the plaintiffs. Ex. 3 is another account sent by the defendants Nos. 8 & 9 to the plaintiffs on 29th July, 1948, which shows that there had been other dealings between the parties besides the sale of 285 bags of the disputed consignment. Probhudayal defendant No. 9 as D. W. 7 in his examination in chief seated that the disputed railway receipt was purchased for the plaintiffs from Girdharilal and they were only entitled to their commission charges in it. No cross-examination was directed on the point that the defendants were acting as commission agent for the plaintiffs. Similarly, Kedarnath (D. W. 8) stated that the plaintiffs had purchased Ex. 1-A1 through their agency. He has also proved Ex. 2 and Ex. 3 the accounts sent by them to the plaintiffs. In cross-examination Kedarnath (D. W. 8) has stated that the plaintiffs had told him that they had seen the goods themselves and they were aware that the goods had been loaded and were lying at the station. In the cross-examination he further stated that Bansilal and Puranmal had come to Khandawa for the purchase of the disputed goods. As for the non-production of bis account books he stated that they were lying in the office of the Income Tax Department. Puranmal (P. W. 2) admitted in his statement that firm Ramavatar Duli Chand of which defendants Nos. 8. and 9 are the proprietors was their agent and they had sent Ex. 2 & 3 to them as their agents. He, however, maintained that they had not purchased the goods from Gopikishan Girdharilal but from Ramavatar Dulichand i. e. defendants Nos. 8 and 9. As for the non-production of his account books he stated that they had been stolen in April, 1949. He also stated that defendants Nos. 8 and 9 had assured him that they will receive the goods soon and in case it was not so received they would be liable to pay the loss. It is significant that defendant No. 6 was not examined as a witness by either parties. Similarly, both parties failed to produce their account books for one reason or the other, but it is clear from the statement of the plaintiff himself that the defendants had been acting as agents at Khandawa. He also admitted the accounts Ex. 2 and 3 sent by them which contains an entry about their commission charges for the sale of 285 bags of cotton seeds. It is clear that the plaintiffs had themselves gone to Khandawa and this transaction was effected in their presence. They also knew that the railway receipt had been endorsed by defendant No. 5 in favour of defendant No. 6. If the deal with regard to the sale of 285 bags of cotton seeds had been effected between defendants Nos. 8 and 9 and the plaintiffs as principal to principal then the plaintiffs would have surely objected to the inclusion of commission charges in the accounts sent by the defendants. Therefore, in view of the admission of the plaintiffs that the defendants had been acting as their commission agent and the inclusion of commission charges in respect of the disputed transaction it becomes clear that defendants Nos. 8 and 9 had acted as commission agents for the plaintiffs in this tran-sction. The Railway receipt was endorsed in favour of the defendant No. 7 to facilitate the payment of the price of goods because the latter had an account with the bank on which the Hundi was drawn. There can also be no doubt that the plaintiffs knew the person from whom they had purchased the railway receipt because there is an endorsement in favour of defendant No. 6 on the railway receipt and the plaintiffs themselves were present at Khandawa at the time of this bargain. The learned Civil Judge was not right in holding that in the present case the principal was not disclosed and therefore, the defendants Nos. 8 and 9 were personally liable for the loss occasioned by the non-delivery of the goods. The next question is whether defendants Nos. 8 and 9 committed any breach of contract with regard to the delivery of goods to the plaintiffs irrespective of whether they were commission agents or principals. In paragraph 3 of the plaint it is admitted that defendants Nos. 8 and 9 sold the railway receipt to the plaintiffs for Rs. 8401/-- It is also admitted by the plaintiffs that they demanded delivery of the goods as endorsees of the railway receipt from the railway company. The admitted case of the parties therefore, is that the railway receipt was endorsed by defendants Nos. 8 and 9 in favour of the plaintiffs and they in their turn had paid the price of the goods.
(3.) WHETHER by the endorsement of the railway receipt and the payment of the price of the goods the transaction of sale was completed and the ownership in the goods passed to the plaintiffs or not is to be considered. Before the Indian Sale of Goods Act No. 3 of 1933, a railway receipt was not expressly included in the 'document of title to goods'. In Ramdas Vithaldas Durbar Vs. S. Amerchand & Co. (1) it was held that : - "a Railway receipt issued to the consignor of goods is an instrument of the title within the meaning of sec. 103 (Indian Contract Act) Whenever a doubt arises as to whether a particular document is a 'document showing the title' or a 'document of title', the test is whether the document in question is used in the ordinary course of business as proof of the possession or control of goods,or authorising or purporting to authorise either by endorsement or delivery the possession of the document to transfer or receive the goods thereby represented. " Now the definition of 'document of title to goods' under sec. 2 (4) of the Indian Sale of Goods Act specifically includes a railway receipt. But a mere endorsement of the railway receipt is not enough to complete the transaction of sale. Without anything more it may only mean to authorise the endorsee to take delivery of the goods represented by the railway receipt as agent of the consignor. Successive endorsements as in the present case would also have the same effect as constituting the successive endorsees the agents of their respective endorsers. The property in the goods does not pass to the endorsee merely by endorsement of the railway receipt in his favour, but where the endorsee pays the price of the goods and the parties intend by endorsing the railway receipt and by payment of the price that the property in the goods should also pass then the goods west in the endorsee and the endorser loses all his rights in them. (See Shamji Bhanji and Co. , Vs. North Western Rly. Co. (2 ). The plaintiffs filed the present suit in their right as owner of the goods by virtue of the endorsement of the railway receipt effected in their favour by defendants Nos. 8 and 9. It is not their case that the endorsement was made in their favour only for the purposes of taking delivery of the goods. Sec. 19 of the Indian Sale of Goods Act lays down that: - " (1) Where there is a contract for the sale of specific or ascertained goods the property in them is transferred to the buyer at such time as the parties to the contract intend it to be trans (2) For the purpose of ascertaining the in tention of the parties regard shall be had to the term of the contract, the conduct of the parties and the circumstances of the case. " ferred. The conduct of the parties in the present case clearly indicates that it was intended by them that the property in the goods should pass to the plaintiffs by the endorsement of the railway receipt. Thereafter nothing more remained to be done by defendants Nos. 8 and 9. That being so it cannot be said that defendants Nos. 8 and 9 have committed any breath of contract with regard to the sale of the 285 bags of cotton seeds covered by the railway receipt Ex. 1-A1. It therefore, follows that the plaintiffs are not entitled to claim any damages from them on account of non-delivery of goods by the railway company. As regard the finding of the learned Judge that defendants Nos. 8 and 9 are liable to pay compensation to the plaintiffs because of their specific agreement, it may be pointed out that it was only an afterthought of the plaintiffs and their statement on this point should not have been considered by the learned Judge as they had not pleaded any special agreement with the plaintiffs. The result, therefore, is that the plaintiffs' suit fore damages cannot be decreed against defendants Nos. 8 and 9 on any ground. As for the liability of the other defendants Nos. 4 to 6 it is obvious that there was no privity of contract between them and the plaintiffs. Neither on the basis of any agreement nor under any provision of law they were bound to deliver the goods to the plaintiffs. They are also therefore, not liable to pay damages to the plaintiffs. On these findings both these appeals must succeed and the plaintiffs' suit deserves dismissal against the appellants. But on behalf of the plaintiffs-respondents it has been prayed and an application has been submitted in that behalf that in case their suit is not decreed against defendants Nos. 4 to 9 they are entitled to a decree for the whole amount against the Union of India representing respondents Nos. 3 to 5 in appeal No. 74 of 1955-Provisions of order 41 rule 33 of the Code of Civil Procedure are sought to be invoked in this connection. Order 41 rule 33 runs as follows: - "the Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection: Provided that the appellate court shall not make any order under sec. 35-A, in pursu ance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order. Illustrations: - "a claims a sum of money as due to him from X or Y, and in a suit against both obtains a decree against X. X appeals and A and Y are respondents. The appellate Court decides in favour of X, it has power to pass a decree against Y. " It is urged that the present case is fully covered by illustration given under the above rule. Further, reliance is placed on Rangam Lal and another Vs. Jhandu, (3), Tricomdas Cooverji Bhoja Vs. Shri Gopinathji Thakur, (4), Kanji Mall Vs. Durga Prasad, (5), Hiralal VS. B. Firangi Lal and (6), Chotteylal Vs. Hari Kishen (7),b Iswarayya Vs. Swarnam Iswarayya (8), and S. M. S. Subramanian Chettiar Vs. Sinnammal (9 ). Learned counsel for the Union of India has seriously opposed this application and has referred to Ananth Nath Biswas and others Vs. Dwarka Nath Chakarvarti (10), V. P. R. Chockalingam Chetty Vs. Seethal Ache (11) and Ravipudi Abbayya Vs. State of Andhra Pradesh (12) and has urged that powers under O. 41 r. 33 should be exercised by the court only when as a result of interference in favour of the appellant further interference with the decree of the lower court becomes necessary in order to adjust the rights of the parties according to justice, equity and good conscience or where the relief prayed for is single and indivisible but is claimed against a number of defendants. But in the present case there is no community of interest between the appellants and the Union of India and the latter's defence is based on grounds entirely different from those of these defendants. Since the plaintiffs did not file any appeal against the Union of India it would not be just and equitable to allow them to be heard on ground of which the Union of India had no notice. It is therefore, necessary to examine the rival contentions in the light of the cases relied on by the parties. In Rangam Lal's case (3) it was held that: - "where the plaintiff sued defendant for rent and obtained a decree for a portion of his claim and plaintiff then appealed against the disallowance of the balance of the amount claimed, but defendant submitted to the decree and neither filed a cross appeal nor took objections under O. XLI, r. 22 of the Code of Civil procedure, 1908, it was not competent to the appellate court acting under O. XLI, r. 33 to interfere with the decree obtained by plaintiff in so far as it had not been challenged by defendant. " It was observed in this case that: - "the words of O. XLI, r-33 are no doubt very vide but we think that care and judicial discretion must be used by appellate courts in the exercise of the powers conferred by the rule, In a proper case the court, of course, is quite entitled and should not hesitate to exercise them. It is not easy, nor perhaps expedient, to lay down any hard and fast rule. We think, however, that one principle may be safely stated. The courts in the exercise of the powers conferred by the O. XLI, r. 33 should not lose sight of the other provisions of the Code of Civil Procedure itself, nor of the Court Fees Act not of the Law of Limitation. " This case does not help the plaintiff at all. ;